Notice on transparency and good faith contracting
NOTICE CONCERNING TRANSPARENCY AND GOOD FAITH IN CONTRACTS OF CSC COMPAGNIA SVIZZERA CAUZIONI S.A. domiciled at its head office in Chiasso, 6830, Via Livio, 14 - Palazzo Grassi (hereinafter also referred to briefly as "the Company" or "the Company") addressed to the commercial organisation of the Company, to the customers who request or already use the consulting services, to the policyholders and beneficiaries of the sureties issued or to be issued by the Company, to companies potentially interested in requesting the services offered by the Company, to professionals who assist policyholders and beneficiaries of the sureties issued or to be issued by the Company and pertaining exclusively to the printed document entitled "atto di fidejussione" with code Mod. 041/PR/19.
This notice is of extreme importance both from a legal point of view and from the point of view of image, professionalism and reputation and will be published on the Company's website from September 30, 2020.
This notice is an integral and substantial part of the surety in accordance with the first paragraph of art. 14 of the GENERAL GUARANTEE CONDITIONS shown on the back of the surety with code Mod. 041/PR/19.
Given that CSC COMPAGNIA SVIZZERA CAUZIONI S.A.:
his notice is addressed to the commercial organization, to the clients who request or already use the consulting services, to the policyholders and beneficiaries of the sureties issued or to be issued by the Company, to the companies potentially interested in requesting the services offered by the Company, to the professionals who assist the policyholders and beneficiaries of the sureties issued or to be issued by the Company, it is highlighted the importance of both the conditions precedent provided in the surety and the obligations provided for by the policyholder, the joint guarantor, the co-obligor and the beneficiary sanctioned according to the cases by the nullity, the forfeiture or the ineffectiveness of the surety; To this end, it is advisable to be assisted by a trusted lawyer, trustee or accountant so as to fully understand the characteristics and limits of both the Company and the sureties issued by it.
In examining the surety having code Mod. 041/PR/19, it must be premised that on the title page of the act of surety it is highlighted that the Company, on the basis of the proposal of the contracting party and the information of the beneficiary, in relation to a new entrepreneurial investment of an industrial or commercial nature or real estate set up or which the contracting party and the Beneficiary intend to set up, following an in-depth investigation carried out on the documentation supplied by the contracting party and its joint and several guarantors and on the reasonableness and sustainability of the new entrepreneurial investment of an industrial or commercial nature or real estate which is the object of the simple surety, documentation which is an integral and substantial part of the surety and which therefore constitutes the essential prerequisite for the granting of the surety, shall act as simple guarantor for the Contractor and in favour of the Beneficiary, under the general terms and conditions set forth below, for the compensation of the final losses that may arise from the non-fulfilment of the contractual obligations indicated below relating to the new industrial or commercial business investment or real estate investment made or that the Contractor and the Beneficiary intend to make;
Therefore, the documentation provided to the Company by the Policyholder, jointly and severally liable person and/or guarantor is of extreme importance, and it is on this documentation that the Company makes its evaluations; this implies that the submission to the Company by the Policyholder or its jointly and severally liable persons or guarantors of forged or deficient documentation, aimed at concealing essential aspects for evaluation purposes, may result in the invalidity of the surety bond issued; the beneficiary has the right to ask the Company at any time for a list of the documentation supplied by the policyholder, the co-obligor and/or the joint guarantor to the Company and to have the dossier containing the investigation of the dossier examined by a specially delegated professional at the Company's offices.
All the clauses contained in the general conditions of guarantee are now highlighted, making a brief comment were considered appropriate; note that a complete copy of the surety Mod. 041/PR/19 is published on the website in the products and services section under the heading "facsimile surety for Italian clients".
Art.1 Object of guarantee
The guarantee provided by this simple surety is operative only after the payment of the relative amount due, indicated on the title page of the surety as well as exclusively for the compensation of losses deriving from contractual defaults occurring subsequent to its completion and within the period of duration and validity indicated on the title page.
The guarantee provided is limited to the contractual obligations with the express exclusion of value/currency debts and contractual penalties and interest on arrears and to the period of validity and duration set forth on the title page, after which this guarantee shall no longer be effective; the above also applies if the original of this surety in the possession of the Beneficiary is not returned to the Company after the end of the said period of validity. The period of validity and efficacy of this simple surety shall in any case be understood as limited only to the expiry of the principal obligation to which this surety refers; this also applies in the event that such expiry, or the expiry of the principal obligation, is prior to the date of the term indicated by this surety in the title page. Payment of the sum indicated on the title page shall be made exclusively by bank transfer sent to the Company. Any breach of contract must be reported to the Company exclusively within the period of duration of the surety indicated on the title page.
There is a general exclusion of payment obligations (currency debts), contractual penalties and interest on arrears, it is reiterated that this is a simple surety and given that the period of validity of the surety is in any case limited to the term of the principal obligation, pursuant to art. 1957 of the Italian Civil Code, the beneficiary must take legal action against the contractor within two months of the expiry of the principal obligation, under penalty of forfeiture of the surety bond. it seems opportune to point out that it is essential that the payment of the consideration be made by bank transfer sent to the Company; if this transfer has been made by the contracting party, it is essential that the beneficiary asks the contracting party to deliver the original copy of the bank account certifying the execution of said transfer. Failure to pay the consideration in the form indicated above or the payment of said consideration to a third party shall result in the nullity of the surety given.
Art. 2 - Existence of other guarantees.
If other guarantees, whether personal, such as those provided by third parties who are jointly and severally liable with the Contractor, or collateral, guarantee the Beneficiary or the object guaranteed by this simple surety, the aforementioned other guarantees, if any, shall prevail over this surety, which shall be effective only for the remaining part of the claim not guaranteed by said other guarantees, if any. Co-obligors and joint guarantors, jointly and severally with each other, shall be responsible for the Contractor's performance to the Beneficiary.
The possible presence of third party joint guarantors, generally indicated on the title page of the surety, implies that the beneficiary must first of all satisfy himself/herself also on their assets (as well as clearly on the assets of the contractor) and in the case of their definitive inability to do so, turn to the company.
Art. 3 - Evaluation and compensation for losses suffered.
The evaluation of the losses suffered by the Beneficiary due to the breach by the Contractor of the contractual obligations to which this simple surety bond refers, shall be drawn up in a special settlement deed which shall in any case be drawn up in agreement between the Beneficiary and the Company and sent by registered letter to the Contractor to obtain his consent; the Company shall then pay the agreed amount within 30 days. The Beneficiary declares that he renounces as of now to request legal interest and monetary revaluation on the sums due to him.
Given that no solidarity is envisaged between the company and the policyholder, nor any waiver of the benefit of the policyholder's prior enforcement, there is no automatism between the declaration of default by the beneficiary and the possible obligation to pay on the part of the company; it should be noted that the loss materializes at the moment when the beneficiary no longer has any possibility of recovering its credit either from the policyholder or from the joint obligors and/or guarantors.
In the case of bankruptible subjects, the loss materialises at the moment of the final closure of the bankruptcy or insolvency procedure; in the case of non-bankruptible subjects, at the moment in which they no longer possess assets or credits that can be attacked or all the executive procedures have had a negative outcome.
Art. 4 - Form of communications to the Company.
All communications or notifications to the Company, in order to be valid, must be made exclusively by registered letter or telegram addressed to the registered office of the Company indicated on the title page. The Company reserves the right, in the case of claims, to appoint professionals or professional companies located in the country where the Beneficiary has its headquarters to deal with and settle the case; in this case, the Company will inform the Beneficiary by registered letter of the details of the professionals with whom the case will be settled. The costs of this additional service shall be borne exclusively by the Company.
Art. 5 - Information on the state of the guaranteed contractual obligations and the obligations of the Beneficiary.
The Company may ask the Beneficiary at any time for information on the status of the guaranteed obligations or on the timely fulfillment by the Contractor of its obligations. The Beneficiary, under penalty of forfeiture of this simple surety, shall notify the Company by registered letter or telegram sent to the Head Office of any default, delay, non-compliance or any event of which it becomes aware that is indicative of a decrease in the Contractor's financial capacity or solvency and therefore of any fact that may affect the surety given and within the peremptory term of seven days from the knowledge of the fact. In any case, while the legal obligations of the Beneficiary remain in force, the Company has the right, if deemed necessary, to indicate to the Beneficiary any initiatives to be carried out, including those of a penal nature, and the Beneficiary shall follow the instructions in question, if received.
It should be noted that it is extremely important to comply with the information obligations towards the Company, under penalty of forfeiture of the surety given.
Art. 6 - Prohibition of settlements and various delimitations.
The Beneficiary agrees not to enter into any settlement agreement with the Policyholder or the joint or several guarantors without the prior written consent of the Company and in case of violation of this prohibition, this simple surety shall be considered ineffective and the Beneficiary shall return to the Company any compensation received by it. The Beneficiary is obliged to provide the Company, also in relation to the preliminary phase of the case, executive, insolvency and penal, with all the documentation and all information requested and useful. The guarantee provided by this simple surety shall in any case be operative only after the complete enforcement of the Contractor and the joint guarantors by the Beneficiary. The Beneficiary, under penalty of forfeiture of this surety, declares that he/she has ascertained that the Contractor has the full professional, economic and moral capacity to fulfill the obligations that are the subject of this surety.
The obligation on the part of the beneficiary to execute the contractor in advance is highlighted, as is the fact that the beneficiary, before granting credit to the contractor, must ascertain the economic conditions of the contractor, requesting, at the very least, information reports from companies that are qualified and specialized in evaluating commercial risk and carrying out checks on the real estate properties of the contractor and his joint and several guarantors.
Art. 7 - Right of subrogation.
After any indemnification effected in dependence of this surety, the Company shall be surrogated to the Beneficiary in all rights and actions of the Beneficiary against the Policyholder and its co-obligors or joint guarantors, for the recovery of all sums paid out.
Art. 8 - Right of recourse.
The Policyholder, co-obligors and joint guarantors, jointly and severally among themselves, are obliged to pay the Company, without exception and within 30 days of receipt of the Company's written request, the sums disbursed by the Company or which it may be called upon to disburse in dependence of this surety. The Company, even before having reimbursed the Beneficiary, may take legal action, even as a precautionary measure, against the Policyholder, the co-obligors and the joint guarantors in order to obtain their release if the Company has received the notice referred to in art. 5 above, or if the Policyholder has been subjected to protests, seizure or attachment, or if an application has been made for the opening of any bankruptcy proceedings.
It is extremely important to promptly comply with the obligations to provide information to the Company provided for in art. 5 above, so as to enable the Company to defend its interests promptly and effectively.
Art. 9 - Taxes and duties.
Any sums required for registration expenses or payment of taxes that may be due in relation to this surety and/or the consideration, even on the basis of legal provisions issued after the date of stipulation of this surety, and even if payment has been made in advance by the Company, shall be borne exclusively by the Policyholder, its co-obligors and its joint guarantors.
Art. 10 - Conditions precedent.
This surety bond shall not be considered stipulated and shall not create any legal obligation if it is not duly signed by the Company, the Policyholder, the Beneficiary, the joint guarantors and the co-obligated parties, and if the consideration indicated on the title page has not been collected by the Company and if it is not accompanied by the "receipt of collection of the consideration" and the "deed of effectiveness of the guarantee" both signed by the Company or by a person expressly authorized to do so by written deed.
The Contracting Party and the Beneficiary jointly and severally undertake, under penalty of ineffectiveness of the surety, to send by registered mail to the Company's Head Office, within 30 days from the date of issue of the surety, the third original copy of this surety with any attachments and appendices, regularly signed by the Contracting Party, the Beneficiary, the joint guarantors and the co-obligated parties.
The Policyholder undertakes to provide mortgage guarantees in favor of the Company on real estate, including real estate belonging to third parties, with a realization value at least equivalent to the guarantee provided, which shall have no legal effect until this condition is fulfilled.
These are suspensive conditions of enormous importance for the validity of the surety; essentially, the failure to fulfill even one of these suspensive conditions determines the absolute and irremediable nullity of the guarantee. The certainty of the fulfillment of the conditions precedent is given only by the issue by the Company of the receipt of the payment and by the deed of effectiveness of the guarantee, both signed by the Company or by a subject expressly authorized to do so by written deed; however, it is advisable to be assisted by a trusted lawyer, trustee or accountant in order to perfectly understand what is provided for in this article.
Art. 11 - Exemption from responsibility, expenses, various delimitations.
The Contracting Party declares that it has checked that this simple surety has been issued in conformity with all the indications and procedures requested by the Contracting Party, thus relieving the Company of any responsibility in this regard, including the possible unsuitability of this surety. Therefore, no total or partial reimbursement of the amount paid is due in the event that the contract from which the guaranteed obligation arises is not stipulated or is declared null and void or the Contracting Party does not use, for any reason whatsoever, nothing excluded, this simple surety, the amount paid to the Company remaining as reimbursement of expenses for the preliminary investigation of the case, the supply of company consultancy and compensation for damages; likewise, no reimbursement of the amount or fraction thereof is due in the event of early extinction of the guaranteed obligation.
The Company shall not be obliged to advance the expenses of the Contractor and joint guarantors. In the event that the Policyholder is subject to any insolvency procedure, the Company shall determine the loss suffered and shall proceed to draw up the liquidation deed in agreement with the Beneficiary within 30 days from the date of the deposit of the decree pursuant to art. 119 of the Finance Law or the judicial title attesting to the definitive closure of the said insolvency procedure; the Company shall proceed to pay the agreed amount within the following 30 days. The Beneficiary, however, expressly and irrevocably renounces requests for advance and provisional enforceability of judicial measures. Should disputes arise between the Contracting Party and the Beneficiary, this surety bond shall be suspended until the disputes have been settled. Payments received by the Beneficiary during the guaranteed period shall be charged against the claim guaranteed by this surety bond even if the payment charge relates to unsecured or prior claims. In the case of obligations that envisage payment by installments, the effects of any forfeiture of the benefit of the term pronounced by the Beneficiary with regard to the Contractor shall not be extended to the Company whose commitment shall remain with reference to the individual payments. It is expressly agreed that should it emerge that the Policyholder or joint guarantor or co-bondholder or Beneficiary have fraudulently made untrue declarations or submitted false or omissive documentation at the time of applying for the guarantee, this surety shall be understood to be terminated by law as of the date of its issue, the written communication from the Company addressed by registered letter to all parties to avail themselves of this right being sufficient for this purpose; in this hypothesis, the sum paid shall remain definitively acquired by the Company as reimbursement of the preliminary expenses, of the business consultancy provided and as a penalty. In any case, this contract shall be considered ineffective ex tunc should the Policyholder or joint guarantor or Beneficiary have acted in violation of the principles of good faith. In the event of enforcement, the Company may substitute itself, in advance, the joint guarantors and co-obligated parties and the Beneficiary must in this case execute these subjects in advance; any agreements contrary to this clause appearing as additional conditions on the title page or in the appendices shall be null and void; this surety bond is subject to an express termination clause which may be invoked by the Company at any time in the event of failure to sign by the co-obligors referred to in the attached deed of co-obligation which forms an integral and substantial part of this simple surety bond.
With regard to the first paragraph of this article, it should be pointed out that the Company is a commercial company and therefore the sureties issued by it cannot be equated either in terms of substance or form with those issued by banks, insurance companies or financial institutions, or in terms of solvency, or in terms of controls (since the Company is not supervised by any Authority in the banking, insurance or financial sector), or even in legal terms (since the laws of Switzerland and of all European countries envisage that the surety to be issued on the basis of the laws be issued by banks, insurance companies and in some cases by financial institutions and have certain requirements), nor from the legal point of view (since the laws of Switzerland and of all European countries provide that the guarantee to be provided on the basis of the laws must be issued by banks, insurance companies and in some cases by financial companies and must also have certain requirements for enforceability), is not registered in any register or list of banking, insurance or financial supervisory authorities, either in Switzerland or in other countries and carries out its activities exclusively at its own offices in Switzerland and does not have in other countries a permanent organization or its own offices, therefore it is not obliged to be subject to foreign regulations.
The Company has a nominal capital of one million Swiss francs; it also has a provision for bad debts of 12,317,483.50 euros composed of a receivable from an Italian company with payment due on 15.12.2019 for which negotiations are underway for its renewal for a five-year period and therefore it is highly probable that at least until 15.12.2024 this receivable can neither be collected nor liquidated. 2024 this receivable can neither be collected nor liquidated; therefore, this fund is made up of a receivable with a medium-term maturity and for which, moreover, there is the risk of uncertainty of collection due to the hypothetical insolvency of the debtor; this fund was set up for the exclusive purpose of allowing wider coverage of the hypothetical economic risk related to the sureties issued by the Company; the Company would also like to draw the attention of potential beneficiaries of the sureties to the fact that this fund may contain assets that are not immediately liquid, such as receivables from third parties; should it be necessary to use these assets to cover the enforcement of a surety issued, the beneficiary, upon signing the deed of surety issued, undertakes, without any reservation, to grant the Company a reasonable time based on the circumstances of the case, to proceed with their realization;
We would like to point out the strong limitations and exclusions foreseen by this article with regard to the Contracting Party, the joint guarantor, the co-obligor and the Beneficiary; to this end, it is advisable to be assisted by a trusted lawyer or trustee or accountant in order to fully understand the limitations and exclusions foreseen by this complex article
One-fifth of the fee shown on the title page is due as a surety fee and four-fifths is due as a fee for business consulting, study activities, research and analysis on economic matters, market research, evaluation of the reasonableness, sustainability and profitability of the new industrial or commercial or real estate or construction investment implemented or that the Contractor and the Beneficiary intend to implement.
Art. 13 - Transparency.
It should be noted that the Company has the unconditional right to replace itself with a third party by transferring the guarantee issued without any obligation of solidarity, with regard to any compensation to be paid to the beneficiary, with this third party assignee of the risk.
Art. 14 - Good faith contract.
The Contracting Party and the Beneficiary certify that they have already received and fully understood what is indicated in the following documents, all of which form an integral and substantial part of this deed of guarantee: information sheet on the Company, solvency requirements sheet, notice on transparency and contractual good faith, and especially with regard to the assets held by the Company. The Contracting Party and the Beneficiary jointly and severally, by signing this surety bond, reaffirm once again that as of the date of issuance of this bond, even in relation to any different and/or previous and/or new economic relationships, there is no contractual default on the part of the Contracting Party towards the Beneficiary of any kind and nature, nothing excluded and everything included.
It should again be noted that the Company has a nominal paid-up capital of one million Swiss francs; it has also set aside a provision for bad debts of 12,317,483.50 euros composed of a receivable from an Italian company with payment due on 15.12.2019 for which negotiations are underway for its renewal for a five-year period, and therefore it is highly probable that at least until 15.12. 2024 this receivable will not be paid, nor will it be paid in full, until 15.12.2024. 2024 this receivable can neither be collected nor liquidated; therefore, this fund is made up of a receivable with a medium-term maturity and for which, moreover, there is the risk of uncertainty of collection due to the hypothetical insolvency of the debtor; this fund was set up for the exclusive purpose of allowing wider coverage of the hypothetical economic risk related to the sureties issued by the Company; the Company would also like to draw the attention of potential beneficiaries of the sureties to the fact that this fund may contain assets that are not immediately liquid, such as receivables from third parties; should it be necessary to use these assets to cover the enforcement of a surety issued, the beneficiary, upon signing the deed of surety issued, undertakes, without any reservation, to grant the Company reasonable time based on the circumstances of the case, to proceed with their realization.
It should be noted once again that the Company is a commercial company and therefore the sureties issued by it cannot be equated either from a substantial or formal point of view with those issued by banks, insurance companies or financial institutions, either from the point of view of solvency, or from the point of view of controls (since the Company is not supervised by any Authority in the banking, insurance or financial sector), or even from a legal point of view (since the laws of Switzerland and of all European countries provide that the guarantee to be given on the basis of the laws must be issued by banks, insurance companies and in some cases by financial institutions and financial institutions), insurance companies and in some cases by financial companies and has certain requirements, including for enforceability), is not registered in any register or list of banking, insurance or financial supervisory authorities, neither in Switzerland nor in other countries and carries out its activities exclusively at its own offices in Switzerland and does not have a permanent establishment or its own offices in other countries, therefore it is not obliged to be subject to foreign regulations.
Art. 15 - References to laws, jurisdiction, competent court.
For anything not expressly regulated and provided for by this surety, it is established the application, as an exception, and exclusively, of Italian law, and therefore of Italian jurisdiction. Therefore, for any controversy that may arise regarding and as a consequence of this surety, the provisions of the Italian Civil Code and the Italian Code of Civil Procedure shall apply. It is also established the exclusive and binding jurisdiction of the Court of Rome.
The parties accept the conventional exception to the jurisdiction and exclusive competence of the Court of Rome.
The Company, in the event that the economic situation of the Policyholder should deteriorate, reserves the right to revoke this simple surety by notifying the Beneficiary by registered letter; in this case the Company shall be liable only for any definitive losses accrued up to the date on which the Beneficiary was made aware of the revocation of the surety. The Company, in place of compensation for any losses suffered by the Beneficiary, reserves the right to substitute the Policyholder in the execution of the guaranteed obligations which generated the indemnifiable loss.
Given the application in derogation and exclusively of Italian law, and therefore of Italian jurisdiction, it is advisable to be assisted by an Italian lawyer in order to fully understand the limitations, forfeitures, conditions precedent and exclusions provided by the surety in question.
Art. 16 - Complaints.
In the event that a dispute should arise between the parties and the Company regarding the interpretation and application of this simple surety bond, before referring the matter to the competent Judicial Authority, the parties have the possibility of using the instruments for the amicable resolution of the dispute provided by the Company, by presenting a specific complaint by registered letter addressed to the Company, Complaints Office at the registered office indicated on the title page of this bond. The Claims Office will reply within 60 days of receipt of the claim. The possibility remains for the parties and the Company to appeal to the competent Judicial Authority at any time, therefore also during the pendency of this complaint procedure.
The Management of CSC COMPAGNIA SVIZZERA CAUZIONI S.A. is at the disposal of anyone interested in providing further explanations and clarifications; in case of complex questions from a legal or commercial point of view, please submit your question in writing by ordinary mail or e-mail to the Management of the Company.
With regard to previous NOTICES RELATING TO TRANSPARENCY AND GOOD CONTRACTUAL FAITH (relating to previous acts of surety with code Mod. 024/PR/12, Mod. 028/PR/13 and Mod. 028/PR/17 used in past years) and no longer published on the Company’s website, It should be noted that they will still be sent by ordinary mail or e-mail to anyone that makes a justified request.
“This document is a simple translation into English of the original document in Italian, the official language of Cantone Ticino, which can be found on the website www.csc-lugano.ch. Therefore, in the event of inaccuracies, errors, imprecisions, or difficulties in interpreting this document, the original document in Italian shall prevail; this also applies if there is a contrast between what is reported in this document and what is reported in the original document in Italian. - Il presente documento è la traduzione semplice in lingua inglese del documento originario in lingua italiana, lingua ufficiale del Cantone Ticino, presente sul sito www.csc-lugano.ch; pertanto in caso di inesattezze, errori, imprecisioni, difficoltà interpretative del presente documento, prevale il documento originario in lingua Italiana; questo anche nel caso in cui vi fosse un contrasto fra quanto riportato nel presente documento e quanto riportato sul documento originario in lingua Italiana.”